Mutual Non-Disclosure Agreement
This Confidentiality Agreement (this “Agreement”) is entered into as ________, 2025 (the “Commencement Date”) between ___________________, an entity organized and existing under the laws of _____________ (the “Company”) and 360 One Firm Capital LLC, an entity organized and existing under the laws of the State of Delaware (“361”), each of 361 and the Company are referred to from time to time as “Party” and collectively as the “Parties”).
WHEREAS, the Parties desire to engage in discussions and negotiations concerning a possible financing or other opportunity (the “Subject Matter”); and the Parties may disclose certain Confidential Information (as defined below) during such discussions and negotiations; and
WHEREAS, it is the intention of the Parties to protect the Confidential Information provided in connection with all matters as to any Subject Matter that may be consummated.
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Definitions. For this Agreement, the following terms shall have the following meanings:
“Affiliate” shall mean any Person controlling, controlled by, or under common control with, a Person.
“Confidential Information” means each Party’s (and its respective Affiliates’ and Subsidiaries’) confidential and proprietary business, financial and technical information, including but not limited to, that Party’s (and its respective Affiliates’ and Subsidiaries’) documents, business plans, business or market projections, business models, maps, records, contracts, notes, data, “know-how,” trade secrets, processes, analyses, compilations, studies, communications or statements revealed, produced or furnished by that Party or its Representatives to the other Party or its Representatives in connection with consideration of the Subject Matter (including any Negotiations associated therewith), whether provided either before, on or after the execution of this Agreement, regardless of the manner or medium in which it is furnished (whether oral, written, visual, electronic or any other manner or medium), and all memoranda, summaries, notes, reports, analyses, compilations, studies, documents, and computer-generated data or information relating to, derived from or reflecting the review of, in whole or in part, any of the foregoing by each Party or its employees, agents or representatives, regardless of the manner or medium in which it was furnished.
“Disclosing Party” means the Party making disclosure of the Confidential Information.
“Permitted Use” means use of the Confidential Information to assist each Party in evaluating the Subject Matter.
“Negotiations” means, collectively, all discussions, negotiations and communications (whether oral or written, including electronic communications) which have occurred or may occur between each Party (and its Representatives (as defined below)) regarding the Subject Matter, regardless of the outcome of such discussions, negotiations and communications or to the extent to which they progress, and including all exploratory and due diligence discussions related thereto.
“Receiving Party” means the Party receiving disclosure of the Confidential Information from the Disclosing Party, including the Receiving Party’s Representatives and Affiliates. For these purposes, “affiliate” shall mean any person controlling, controlled by, or under common control with, the Receiving Party or any of the Receiving Party’s subsidiaries. In addition, the term “Person” shall be broadly interpreted to include, without limitation, any corporation, company, partnership, or other entity and individual. The term “entity” shall include any corporation, company, partnership or other business or non-profit entity.
“Representatives” means, singularly and collectively, a Party’s directors, trustees, officers, employees, agents, consultants, accountants, potential financing sources and investors, advisers or other representatives, including legal and financial advisers.
“Subsidiary” means, with respect to a specified person, an affiliated person who is controlled by the specified person, directly or indirectly, through one or more intermediaries.
Confidential Information; Nondisclosure Covenants.
a. Use of Confidential Information. The Receiving Party, except as otherwise permitted herein (i) shall hold the Confidential Information in confidence; (ii) shall use the Confidential Information only for the Permitted Use; (iii) shall reproduce the Confidential Information only to the extent necessary for the Permitted Use; (iv) shall restrict disclosure of the Confidential Information to its Representatives who (A) require such Confidential Information for the Permitted Use, (B) are informed by the Receiving Party of the confidential nature of the Confidential Information and the obligations of this Agreement and (C) are bound, by written agreement with the Receiving Party or otherwise, by the obligations relating to confidentiality similar to the provisions set forth in this Agreement; and (v) shall not disclose the Confidential Information to any third party without the Disclosing Party’s prior written approval. The Receiving Party shall be liable for any breach of this Agreement by its Representatives.
b. Exclusions from Confidential Information. The foregoing restrictions on the use or disclosure of Confidential Information shall not apply to any Confidential Information: (i) that at the time of disclosure by the Disclosing Party to the Receiving Party was known to the Receiving Party free of restriction and evidenced by documentation in the Receiving Party’s possession; (ii) that has become generally available to the public without breach of this Agreement or other wrongful act by the Receiving Party; (iii) that has been rightly received from a third party who is not under any obligation of confidentiality with regard to such information; or (iv) for the purpose of permitting a disclosure, and to the extent disclosed, pursuant to law, judicial order or governmental regulation, so long as the Receiving Party promptly notifies the Disclosing Party prior to such disclosure and provides the Disclosing Party with an opportunity, to the extent practicable, to seek an appropriate protective order.
c. Confidentiality of Negotiations. Without the prior written consent of the other Party, which may be granted or withheld in such Party’s sole discretion, the Parties shall not disclose to any person (other than each Party’s Representatives) the fact that consideration of a Subject Matter and Negotiations are taking place or have taken place or any other information with respect thereto except to the extent necessary for the Permitted Use, nor shall either Party make, or permit any Representative to make, any public or private statement or disclosure concerning the consideration of the Subject Matter and Negotiations or any resulting agreements except for private statements to other Representatives except to the extent necessary for the Permitted Use.
d. Rights to Confidential Information. The Receiving Party acknowledges and agrees that no license to the Receiving Party under any trademark, trade secret, patent, copyright, mask work protection right or any other intellectual property right is either granted or implied by the disclosure of Confidential Information. None of the Confidential Information which may be disclosed to the Receiving Party by the Disclosing Party shall constitute any representation, warranty, assurance, guarantee or inducement by the Disclosing Party of any kind, and, in particular, with respect to the non-infringement of trademarks, patents, copyrights, mask protection rights or any other intellectual property rights, or other rights of third persons.
Non-Solicitation. Each Party agrees, for a period of twelve (12) months following the execution of this Agreement, each Party shall not, without the express written consent of a duly authorized officer of the other Party, directly or indirectly, induce or seek to influence any employee of (or consultant to) the other Party to leave its employ (or terminate such consultancy) with the other Party.
Return/Destruction of Confidential Information. All Confidential Information disclosed hereunder by the Disclosing Party or its Representatives shall remain the sole property of the Disclosing Party and shall be returned or destroyed by the Receiving Party and its Representatives upon written request by the Disclosing Party or upon the Receiving Party’s determination that it no longer has a need for such Confidential Information in connection with the possible transaction or Subject Matter. The Receiving Party shall, upon request by the Disclosing Party, identify those persons to whom Confidential Information has been disclosed by it or its Representatives. Notwithstanding the foregoing, the Receiving Party shall be entitled to retain such copies of Confidential Information as may be required to comply with applicable law or the Receiving Party’s internal record keeping policy, but such Confidential Information shall remain subject to the terms of this Agreement.
Term. The term of this Agreement shall commence on the Commencement Date and end two years thereafter.
Indemnification and Equitable Relief. Each Party hereby agrees to indemnify, defend and hold harmless the other Party and its Representatives from and against any loss, cost, liability, cause of action, claim, expense (including reasonable attorneys’ fees and expenses), or profits which such Party would have earned or made from any circumvention or disclosure, arising out of or resulting from any unauthorized use or disclosure by such Party or its Representatives of the Confidential Information, or any other breach of this Agreement by such Party or its Representatives. Each of the Parties hereby acknowledges and agrees that (a) the covenants contained in this Agreement are fundamental for the protection of the other Party’s legitimate business and proprietary interests, (b) money damages would be incalculable and not be a sufficient remedy for any breach of this Agreement by such Party or its Representatives, and (c) the other Party is entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Each of the Parties hereby waives, and shall use its reasonable efforts to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with any such remedy. Any equitable remedy shall not be deemed to be the exclusive remedy for breach of this Agreement. In the event of litigation relating to this Agreement, if a court of competent jurisdiction determines that a Party or its Representatives has breached any provision of this Agreement, then such Party agrees to reimburse the other Party for all of its costs incurred (including reasonable attorneys’ fees and expenses), in connection with such litigation, including any appeals therefrom.
Non-circumvention. In addition to the restrictions on disclosure and the handling of Confidential Information, the Receiving Party shall not use in any manner any of the Disclosing Party’s Confidential Information for the purpose of circumventing or attempting to circumvent, directly or indirectly, the intent of this Agreement, including but not limited to, use of such Confidential Information to (a) develop its own business, (b) compete with the Disclosing Party, (c) reverse-engineer proprietary technology or intellectual property, or (d) take, impede, disrupt or otherwise interfere with a prospective advantage, business opportunity, or expectancy of the disclosing Party that is known (or reasonably should have been known) to exist based on the disclosure of Confidential Information by the Disclosing Party to the Receiving Party. Without limiting the generality of the foregoing, during the term of this Agreement, neither Party shall (a) contract directly with any actual or potential customer, employee or supplier of the other Party who is actually identified in Confidential Information of such other Party to the extent that such contract would be in direct competition with such Party or (b) directly or indirectly contact or communicate with any person or entity actually identified in Confidential Information of the other Party as an actual or potential business partner, acquirer or acquisition target of such other Party, in either case without the prior written consent of the Party in whose Confidential Information the identity of such customer, employee, supplier, business partner, acquirer or acquisition target is contained, the grant, withholding or conditioning of such consent to be within the sole discretion of the Party whose consent is sought.
Miscellaneous.
a. Entire Agreement. This Agreement constitutes the entire understanding between the Parties hereto as to the Confidential Information and merges all prior discussions between them relating thereto.
b. Amendments. No amendment or modification of this Agreement shall be valid or binding on the Receiving Party or the Disclosing Party unless made in writing and signed on behalf of each of them by their respective duly authorized officers or representatives.
c. Severability. If any provision contained in this Agreement shall be determined by a court or other tribunal of competent jurisdiction to be invalid or unenforceable, such provision shall be deemed amended by limiting and reducing it so as to be valid and enforceable to the maximum extent compatible with applicable law, and the remaining provisions of this Agreement shall remain in full force and effect to the maximum extent permissible.
d. Waiver. The failure or delay of the Disclosing Party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce the same. No waiver by the Disclosing Party of any condition or of any breach of any term contained in this letter shall be effective unless in writing, and no waiver in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances or a waiver of any other condition or breach of any other term.
e. Notices. Except as otherwise expressly stated, all notices, claims, certificates, requests, demands and other communications hereunder shall be in writing and shall be deemed given upon the earlier of (i) when it is personally delivered, (ii) three days after having been mailed by U.S. certified mail, postage prepaid, return receipt requested or (iii) two days after having been sent by recognized overnight delivery service, to the following address or to such other address as the Party to whom notice is to be given may have previously furnished to the other in writing in the manner set forth above, provided that notice of a change of address shall be deemed given only upon receipt:
If to 361: Attn: Mark Sanor, 19 South Street, Summit, NJ 07901; Email: msanor@361firm.com
If to the Company: Attn: _____________________, __________________________; Email: ____________________
f. Governing Law; Jurisdiction; Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, United States of America, without giving effect to the choice of law rules thereof. In the event of any dispute arising out of or relating to this Agreement, any suit, action or other proceeding brought by either Party shall be brought in, and the Parties hereby irrevocably agree to submit to the jurisdiction of, the appropriate courts located in the State of New York, United States of America, and the Parties irrevocably agree that all claims and matters relating to any such dispute, suit, action or proceeding may be heard and fully adjudicated in such courts, notwithstanding any laws, treaties, rules, case law or principals of jurisdiction or venue to the contrary. Each Party consents to service of process in any such dispute, suit, action or proceeding in any such court by the mailing of copies of such process to the Party by certified or registered mail at the Party’s address set forth herein for the purpose of giving notice. Nothing herein shall affect the right to serve process in any other manner permitted by law.
g. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties have caused their authorized representatives to sign this Agreement on their behalf as of the date first above written. This Agreement may be signed in counterparts and delivered by facsimile.
Company
By: ____________________________________
Name, Title: _____________________________
360 One Firm Capital LLC
By:____________________________________
Mark Sanor, CEO